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2017/2018 Executive Summary

The 2017-2018 Judicial Hellholes report shines its brightest spotlight on eight jurisdictions or courts that have earned reputations as Judicial Hellholes. Some are known for welcoming litigation tourism or as hotbeds for asbestos litigation, and in all of them too many judges seem more eager to expand civil liability than to respect precedent and the policy-making authority of duly elected lawmakers.

Judicial Hellholes

#1 FLORIDA The Florida Supreme Court’s liability-expanding decisions and barely contained contempt for the lawmaking authority of legislators and the governor has repeatedly led to its inclusion in this report. And though the high court’s plaintiff-friendly majority this year shrunk from 5-2 to 4-3, a hushed discussion between two majority justices recently caught by an open microphone suggests that this majority is as partisan as ever and brazenly determined to in uence the judicial selection process as three like-minded colleagues face mandatory retirement in early 2019.

Meanwhile, an aggressive personal injury bar’s fraudulent and abusive practices in South Florida and elsewhere have also tarnished the state’s reputation. Encouragingly, at least some plaintiffs’ lawyers who’ve crossed the line are being held accountable, either with sti court sanctions or criminal prosecutions. But with the help of some lawmakers, too many are still get- ting away with too much, and for the rst time in this report’s 16-year history, enough shade has been cast on the Sunshine State to rank it as the nation’s worst Judicial Hellhole.

#2 CALIFORNIA If most lawmakers in Sacramento and the reliably generous plaintiffs’ lawyers who write campaign checks to keep them there can be likened to the Symbionese Liberation Army of the Berkeley-radical 1970s, then most California voters can be likened to the Stockholm syndrome-suffering heiress Patty Hearst, coming to love their captors even as hundreds of new laws – many of them designed speci cally to expand civil liability on business and property owners – are enacted each year.

A lengthy, stand-alone book could be written every year about California’s inexorable expansions of civil liability. But because this report’s constructive criticisms seem to fall largely on deaf ears in Sacramento and in many courthouses around the state, this year’s look at the West Coast’s perennial Judicial Hellhole will pragmatically limit its focus to an armful of the state’s civil injustices, including precedent-defying state supreme court decisions, the Private Attorneys General Act, Prop 65, food and beverage litigation, innovator liability, the California Environmental Quality Act’s impact on a ordable housing, courts’ expansions of public nuisance law and natural disaster-chasing personal injury lawyers, among others.

#3 ST. LOUIS, MISSOURI As Bloomberg has reported, St. Louis civil courts are known for “fast trials, favorable rulings, and big awards.” But by virtue of a change in gubernatorial leadership, a good start by state lawmakers on an agenda of much needed statutory reforms and a powerful U.S. Supreme Court decision curbing forum shopping in 2017, the City of St. Louis Circuit Court can no longer be fairly ranked as the nation’s worst Judicial Hellhole, as it was a year ago. But much more work must be done to improve further the civil justice climate in St. Louis and the rest of the “Show Me Your Lawsuits State.”

#4 NYCAL Since 2013 the Judicial Hellholes report has faithfully if discouragingly reported in great detail on the continuingly corrupt and brazenly plaintiff-favoring ways of New York City’s Asbestos Litigation court known as NYCAL. But rather than provide another historically comprehensive analysis of all the unseemly self-dealing that has long sullied NYCAL’s reputation and otherwise results in extraordinarily good outcomes for asbestos plaintiffs and their lawyers relative to outcomes in other jurisdictions nationwide, this year’s report focuses largely on a much anticipated and ultimately disappointing new Case Management Order (CMO), which will govern the handling of cases going forward, pending an appeal.

#5 PHILADELPHIA, PENNSYLVANIA The Philadelphia Court of Common Pleas has long been known nationally center for products liability litigation. The court’s Complex Litigation Center (CLC) hosts a mass torts program that attracts drug, medical device and asbestos cases from across the county. The CLC had undertaken reforms and, in recent years, seemed to become less welcoming to out-of-state plaintiffs. But a surge of new lawsuits and a string of multimillion dollar verdicts have sadly returned “The City of Unbrotherly Torts” to the ranks of Judicial Hellholes.

#6 NEW JERSEY As New Jersey Supreme Court Justice Barry T. Albin explained to defense counsel during 2016 oral arguments in an appeal of a case based wholly on junk science, out-of-state plaintiffs “like our evidence rules, they like our expert witness rules … .” at was an understatement. Plaintiffs and their lawyers also like the Garden State’s continuing hostility to arbitration agreements, which effectively ignores clear guidance from the U.S. Supreme Court. And plaintiffs from across the country love the state high court’s willingness to apply New Jersey’s longer-running statute of limitations to product liability claims. But the state’s justices did tap the brakes on runaway, if preposterous consumer class actions this year, and they’ll soon have the chance to revisit (and strengthen) New Jersey’s lax standard for the admission of expert testimony.

#7 MADISON AND COOK COUNTIES, ILLINOIS Madison and Cook counties have become perennial Judicial Hellholes known for disproportionate volumes of litigation and large verdicts. plaintiff-friendly judges seem to dominate both jurisdictions in which defendants face uphill battles from their very rst motions. And with the most relevant local and state politicians comfortably in cahoots with the powerful plaintiffs’ bar, prospects for positive reforms remain remote, even as these jurisdictions’ hyper-litigiousness works against economic growth and job creation, and makes it harder for both government and businesses to nd a ordable insurance.

#8 LOUISIANA The Pelican State’s legal climate has su ered for decades at the hands of powerful trial attorneys and the politicians they control. Plaintiff-friendly courts, excessive jury verdicts, problematic venue laws, widespread judicial misconduct, a lack of transparency in asbestos litigation and trust claims, disability-access lawsuits targeting small businesses, broad misuse of consumer protection laws, and the highest jury-trial threshold in the nation are all problems that contribute to the state’s longstanding reputation as one of the worst places in the country to be sued.

Watch List

Beyond the Judicial Hellholes, this report calls attention to seven additional jurisdictions that bear watching due to their histories of abusive litigation or troubling developments. Watch List jurisdictions fall on the cusp – they may drop into the Hellholes abyss or rise to the promise of Equal Justice Under Law.

BALTIMORE, MARYLAND Prompted by overtures from the politically powerful personal injury law firm of Peter Angelos, Maryland lawmakers in 2018 are expected to consider what would effectively be a change to Maryland’s longstanding statute of repose, reviving questionable, if not outright fraudulent asbestos claims if the state’s high court does not do so first. Plaintiffs’ lawyers also want lawmakers’ help in building a “litigation superhighway” for these stale old cases by hiring more judges in Baltimore at taxpayers’ expense.

GEORGIA Georgia’s Supreme Court in recent years issued decisions that significantly expanded civil liability, and that troubling trend continued in 2017. Making matters worse, trial courts in the Peach State are understandably following the high court’s lead as a growing list of outrageous verdicts has begun to worry many business leaders there.

NEWPORT NEWS, VIRGINIA Joining Baltimore as another hotbed of asbestos litigation along the Mid-Atlantic coast, Newport News is known for evidentiary double standards, incorrect legal rulings and lack of transparency that help give asbestos plaintiffs there the highest trial-winning percentage in the country. But new judges and some related federal court decisions my lead the way toward greater fairness for defendants.

OREGON SUPREME COURT Oregon’s high court makes its first appearance in this report, primarily because of two decisions that should trouble consumers, doctors, hospitals and health insurers alike. Though this court made some enlightened decisions during the past year, its two alarming decisions suggest it may take the Beaver State down a darker trail toward a future Judicial Hellholes designation.

PENNSYLVANIA SUPREME COURT Pennsylvania’s Supreme Court has been regarded as generally balanced in the past, but that balance has shifted since 2016 after several newly elected justices supported by the plaintiffs’ bar joined the bench. Now it seems the high court is more easily persuaded to expand liability, as it has done with decisions a ecting asbestos litigation, medical liability, workers’ compensation and “bad faith” claims against insurers. On the bright side, the court upheld a longstanding statutory remedy for victims of lawsuit abuse.

U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT No rational observer would suggest for a moment that citing the U.S. Court of Appeals for the Ninth Circuit on the Watch List will in any way prompt it to moderate its oft-overturned ways. But two very disappointing decisions this year, involving the admissibility of expert testimony and abuse of the False Claims Act, demand this report’s attention.

WEST VIRGINIA Once a perennial Judicial Hellhole, West Virginia’s legal climate has vastly improved during the past three years thanks to numerous statutory reforms enacted after Mountain State voters decided they’d had enough of trial lawyer-controlled lawmakers – and jobs-killing legislative expansions of civil liability – and threw many of the bums out on Election Day 2014. In 2017 the legislature passed two more important reform bills, but the state’s still plaintiff-friendly high court remains a problem as unanswered questions about one justice’s alleged conflicts of interest and campaign connections to wealthy trial lawyers won’t go away.

Dishonorable Mentions

CONNECTICUT SUPREME COURT BLESSES $42 MILLION FOR TICK BITE
Responding to inquiries from a federal appeals court, the Connecticut Supreme Court in August 2017 declared that state law supports a $41.7 million jury award in a negligence case against a private school a er a teenaged student was bitten by a tick while hiking in a mountainous area during a study program in China.

MINNESOTA GOVERNOR’S ‘VETO TRIPLE-PLAY’
Though voters last year sent new, reform-minded majorities to both bodies of the state legislature, Gov. Mark Dayton, a loyal servant of the plaintiffs’ bar, vetoed bills that would have limited property owners’ liability for trespassers’ injuries, lowered the prejudgment interest rate and allowed defendants in auto-accident cases to adduce evidence as to whether plaintiffs were wearing their seatbelts.

WISCONSIN APPEALS COURT STRIKES DOWN MEDICAL LIABILITY LIMIT
In July 2017 a Wisconsin appellate court struck down the state’s statutory limit on noneconomic damages in medical liability cases, holding that lawmakers’ $750,000 limit was arbitrary and unfairly burdensome to catastrophically injured plaintiffs.

Points of Light

This year’s report again enthusiastically emphasizes the good news from some of the Judicial Hellholes states and other jurisdictions across the country. Points of Light are examples of fair and balanced judicial decisions adhering to the rule of law, positive legislative reforms and other encouraging developments.

One very encouraging development this year is action taken by state attorneys general in Arizona, New Mexico and Nevada against scheming attorneys hectoring small businesses with o en fraudulent lawsuits that allege violations of the Americans with Disabilities Act.

Featured among this year’s notable court decisions are the U.S. Court of Appeals for the Fifth Circuit’s reversal of a record-setting if wholly meritless False Claims Act verdict and two sound decisions from the Seventh Circuit, including one of the final decisions written by the retiring but forever-quotable Judge Richard Posner, decertifying a preposterous class action that claimed no compensable injuries.

Meanwhile, legislatures in 13 states enacted 17 significant, positive civil justice reforms in 2017, including asbestos transparency statutes in Iowa, Mississippi, North Dakota and South Dakota; disability-access litigation reforms in Minnesota and Texas; and, also in Texas, a much needed crackdown on fraudulent storm-litigation detailed in this report last year.

Closer Looks

THREE SUPREME COURT DECISIONS SHOULD SLOW LITIGATION TOURISM
Assuming lower courts abide by them, three U.S. Supreme Court decisions in 2017 should limit the ability of plaintiffs’ lawyers to forum-shop their cases in Judicial Hellholes. The high court’s decisions provide welcome relief for business defendants that had grown weary of being hauled into plaintiff-friendly jurisdictions across the country to which neither they nor the plaintiffs suing them had any connection.

OPIOID LITIGATION
As too many Americans suffer serious drug abuse problems, our leaders should seek guidance from caring and knowledgeable experts in a cooperative search for solutions in the public interest. Instead, many state and local officials have been convinced by self-interested personal injury lawyers to take an adversarial approach, inviting additional problems that neither officials nor their constituents need.

TRIAL LAWYERS’ INFLUENCE GROWS AT THE AMERICAN LAW INSTITUTE
As the mission of this long respected legal institution shifts troublingly from describing the law to changing the law, its leaders should take steps to keep it from being wholly captured by plaintiffs’ lawyers and reflexively anti-business academics.

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